August 26, 2013

With Ensign Decision, Court Hands CREW Fourth Victory Against DOJ

By CREW Staff

Sen. John Ensign

On August 23, 2013, U.S. District Court Judge John Bates handed CREW a major victory in CREW v. U.S. Dep’t of Justice (D.D.C.), in which CREW sued the Department of Justice (DOJ) for documents related to the now-closed investigation of former Senator John Ensign (R-NV).  Sen. Ensign had publicly acknowledged he was the subject of a criminal investigation for efforts to cover up his affair with a former campaign staffer then married to his chief of staff.  A special counsel hired by the Senate Select Committee on Ethics had issued a report finding the senator’s conduct appeared to violate numerous federal laws, and there was widespread media coverage of the scandal. 

The ethics committee referred the case to DOJ for a further investigation, but the department declined to prosecute Sen. Ensign, instead prosecuting only the former chief of staff, Doug Hampton.  DOJ refused to provide any records, claiming Sen. Ensign’s privacy interests trumped the public’s right to know.  Ludicrously, DOJ claimed Sen. Ensign’s privacy interests were so great the agency needed to protect even the mere fact of the investigation, notwithstanding Sen. Ensign’s public comments about the criminal case and the significant media coverage.

Accepting CREW’s arguments, Judge Bates found Sen. Ensign’s privacy interests were outweighed by the substantial public interest in records that would shed light on the DOJ investigation and the decision not to bring charges against the senator.  As the court explained, “CREW wants records showing what efforts DOJ took to investigate serious allegations of criminal conduct backed by ‘substantial credible evidence.’”  Given Sen. Ensign’s status as “a high ranking and high profile elected official who resigned following accusations of significant public corruption,” the court concluded the substantial public interest outweighs Sen. Ensign’s privacy interests. 

The court also agreed with CREW that the widespread media attention to both Sen. Ensign’s misconduct and the manner in which DOJ has handled investigations of other members of Congress raise the issue of whether DOJ is covering up congressional corruption.  Accordingly, Judge Bates ordered DOJ to submit within 60 days a Vaughn Index, a document specifically identifying which documents the agency is withholding and why.

CREW has won similar victories in three other cases against DOJ seeking documents related to the closed cases of Paul Magliocchetti, who was convicted for making illegal campaign contributions, Rep. Don Young (R-AK), and Rep. Jerry Lewis (R-CA).  In each of these cases, DOJ claimed the privacy interests of the investigative subjects outweighed any public interest, allowing the agency to assert a categorical exemption from disclosure.  Three separate courts disagreed, finding — as Judge Bates found in the Ensign matter — that the public interest in disclosure outweighed the asserted privacy interest, and in each case the court ordered the agency to process the requests and produce all non-exempt documents. 

As a result of that processing, CREW and the public obtained access to a wealth of documents showing members of Congress have been involved in criminal conduct, but that DOJ nevertheless has failed to prosecute.  CREW expects the Ensign documents will provide similar insight.  All of which goes to show that DOJ does, indeed, appear loathe to prosecute even those members of Congress who clearly have violated federal criminal law.

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